The Nuffield Family Justice Observatory (NFJO) undertook a consultation on the use of remote hearings following the COVID-19 pandemic in April 2020 with a follow-up in September 2020. In this blog post, Farah Ahmed of 18 St John Street Chambers provides a summary of the review consultation and highlights the salient points.
The Nuffield Family Justice Observatory (NFJO) was asked to undertake a consultation on the use of remote hearings following the COVID-19 pandemic. The initial consultation took place in April 2020. This concluded that during the early stages of the pandemic that there were a wide variety of telephone and video platforms that were being used and that there were concerns about the fairness of remote hearings. It was clear that at this early stage further work was needed to truly grasp the impact of remote hearings.
A follow up report took place between 10 and 30 September 2020 to review the experience of remote and hybrid hearings in the family court during the pandemic. Over 1000 people responded, including parents and professionals in the family justice system in England and Wales including judges and court staff. The NFJO further commissioned the Parents, Families and Allies Network (PFAN) to collect information from parents and relatives through focus groups and interviews- 21 parents took part in these events with an online discussion on 6 October 2020 where 115 participants took place.
This blog is a summary of the review consultation and highlights the salient points.
It would appear that professionals who responded to the survey felt that remote and hybrid hearings were working smoothly and even reported that there were some benefits to working remotely. Professionals also felt that fairness and justice had been achieved in such cases most or all of the time. There was, however, concern about whether the proceedings were being perceived as fair by the parties in all the cases. Furthermore, those that responded- felt that there were difficulties in being sufficiently empathetic, supportive and attuned to the lay parties when conducting hearings remotely.
The latter view has been echoed when parents and organisations supporting parents responded to the survey. They were less positive about remote hearings. The majority of the parents and family members had concerns about the way their case had been dealt with and alarmingly just under half said they had not understood what had happened during the hearing.
The common problems/concerns that were highlighted:
- Parents taking part in hearings remotely alone;
- Parents taking part in hearing from their homes;
- Lack of communication between lay parties and their legal representatives before hearings;
- Difficulties with communication during hearings because of the need to use more than one device or to adjourn the hearing;
- Difficulties are experienced by parents who require an interpreter or who have a disability;
- Halt in face to face contact between infants and parents in cases involving interim care proceedings;
- Lack of support to new mothers involved in interim care order applications;
- Litigants in person in private law matters and the limited support that McKenzie Friends or organisations like Support Through Court can offer in remote hearings; and
- There is also a recent concern that working remotely may have an impact on the formality and authority of the Court.
Technology
Many months into the pandemic now we are all becoming more comfortable with the technology that we are using during remote and hybrid hearings. Telephone hearings continue to be widely used. In some courts telephone hearings are being used for final and contested hearings as well as for administrative and directions hearings. There are a range of videoconferencing platforms that are now in use.
The most common determinants for which platform is used are the type of case, the availability of technology, court resources and the preference and technological capability of the judge. There are unfortunately still problems being encountered relating to connectivity and common issues identified include difficultly in hearing people, difficultly seeing people and difficulty identifying who is speaking.
More than half of the professionals who responded had taken part in a hybrid hearing where some people were attending in person and some via telephone or video link. Although such hearings were felt to be important, many professionals reported technological difficulties involved with running hybrid hearings.
Although the survey is suggesting that the hearings are being well organised, a lack of advance notice, sudden cancellations and lack of clarity about which format will be used for the hearing are the problems that still need ironing out.
It has been suggested that lay parties continue to have difficulties in accessing hearings because they lack the hardware, connectivity or skills to navigate the software. Efforts are being made by the professionals to help lay parties, but it is not clear who has the responsibility for this. Despite being in the age of the smart phone, as we have learnt, this still can be a difficult process to grasp.
Again, while most professionals may now have become used to e-bundles concerns were expressed that lay parties do not have access to e-bundles; that bundles and relevant documentation are not reaching the judge or the bench in time for the hearing; and that there is a lack of clarity about how best to communicate with courts and judges in relation to documentation.
Professionals report that a lack of sufficient court staff is hampering the smooth running of hearings, leading to inefficiencies in the way that hearings are managed and in the use of judicial time. There is a particular shortage of staff sufficiently trained in set up and use of the different types of technology.
Conclusions
The survey makes it very clear that the concern is whether lay parties are fully able to participate in the hearings and whether they are receiving real access to justice. One can imagine this being the case, if as professionals we are accessing more than one device to actively participate in the hearing, how can one expect the lay party to have active participation when all they have is the smart phone in their hand. Lay parties who themselves can be vulnerable in their own right and have limited resources.
The intention when the pandemic first exploded into our lives was to try and ensure that access to justice took place and to try and prevent a backlog of cases. This consultation has been useful in identifying what perhaps is not going as well and to give professionals an insight in what we can change to ensure that lay parties feel that justice is not only being done but is being seen to be done.
Farah Ahmed
18 St John Street
19th November 2020
Farah Ahmed is a member of the Family Law Department at 18 St John Street Chambers. Farah has considerable experience in serious and complex public law cases and has regularly been instructed on behalf of Local Authorities, Parents, Children’s Guardians and the Official Solicitor.
For more information on Farah and the rest of the department, please click the image below or contact a member of the family clerking team on 0161 278 8263 or via email family@18sjs.com